The opinion of the court was delivered by: Garaufis, District Judge.
This court is currently conducting voir dire in a case in which the Government seeks the death penalty against Ronell Wilson ("Wilson"). Before the court are Wilson's motions to have Jurors 244 and 254 excluded for cause and the Government's motion to have Juror 227 excluded for cause. The factual background and much of the legal background applicable to these motions were set forth in this court's Orders dated October 20, October 23, and November 5, 2006.
For the reasons set forth below, Wilson's motions are GRANTED with respect to Juror 254 and DENIED with respect to Jurors 244 and the Government's motion is GRANTED. Juror 244 is therefore qualified to serve and Jurors 227 and 254 are excluded for cause.
Wilson moved to have Juror 244 excluded for cause on the ground that he is not life qualified. That motion is denied.
This juror does not present a close call. He stated unambiguously that he would consider the death penalty only if presented with "the worst of the worst, meaning the worst crime, the worst criminal." (Tr. at 1896.) He then stated that he would "absolutely" consider both potential penalties and that he was "open to the possibility of voting for a sentence of life imprisonment without the possibility of release instead of the death penalty for a person found guilty of intentionally murdering two police officers." (Id. at 1896-97.) These statements are consistent with other statements he made at voir dire. (See, e.g., id. at 1900, 1901.)
In arguing that this juror is not life qualified, Wilson first asserts that the juror would automatically impose the death penalty upon any defendant found guilty of murder. (Id. at 1906.) That assertion simply lacks a basis in the record. Wilson next argues that this juror would be unwilling to consider evidence about Wilson's background in the penalty phase of this trial, if any. (Id.) It is true that this juror stated that the defendant's background "probably wouldn't have any consideration" when I asked him, in the absence of legal instruction, what kind of background evidence would be relevant to him in the penalty phase. (Id. at 1898.) I then, however, told this juror that he must consider certain factors during the penalty phase pursuant to my instructions, and he indicated unambiguously that he would meaningfully consider those factors:
Q: If you're sitting on the sentencing part of the trial and there's evidence presented about the background of the defendant and the background of the case, I'm going to instruct you that you need to consider certain factors during the sentencing portion of the case, before you make a decision on the penalty[.] . . . Can you do that?
A: Absolutely. I mean, I would listen to his previous background[.] I wouldn't just flat out say yes, I recommend the death penalty. No, that's not what I would do.
(Id. at 1904.) This answer is consistent with the juror's other unequivocal answers to the effect that he would follow the law and the court's instructions. This juror's statements leave no room for Wilson to argue that this is "[a] juror who will automatically vote for the death penalty in every case [and] will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to." Morgan v. Illinois, 504 U.S. 719, 729 (1992). Juror 244 is therefore qualified. Wilson's motion to have him excluded for cause is denied.
Wilson moved to have Juror 254 excluded for cause on the theory that during the penalty phase, if any, he would consider mitigation evidence offered by Wilson to be aggravating. (Def. Challenge Juror 254 at 2.) Wilson correctly notes that treating mitigation evidence as aggravating is impermissible under both the applicable statutory scheme and Supreme Court case law. (See id. (citing 18 U.S.C. § 3592(a)(8) and Zant v. Stephens, 462 U.S. 862, 885 (1983)).) Because I find a strong possibility that this juror would behave as Wilson predicts, I grant Wilson's motion.
In his questionnaire, this juror wrote that the death penalty "can and should be applied to the most severe crimes. If a person murders and is 'insane' (legally) then [the death penalty] should still apply. We don't need vicious murderers or insane murderers." (Answer to Question 58(a).) In order to clarify what this juror meant, I questioned him extensively at voir dire about this statement. I found his answers unsatisfying, such that ...